The religious Right’s quiet decline is one of the more interesting political developments of the last decade.
The happy paradox of constitutional federalism is that two sets of government can protect liberty better than one. This promotion of liberty depends on a federalism of different governmental spheres laid down in the Constitution itself. The Constitution enumerates and thereby limits the powers of the federal government– basically to provide national defense, protection of interstate commerce, and a few other public goods that state and local governments cannot provide.
The states are thus left with very substantial powers. But they are forced to compete with one another in market for governance that is intensified by a few federal constitutional guarantees–those of the free flow of goods, people, and speech across state lines. As the limitation of power protects against tyranny of the federal government so does the ability of citizens to exit protect against state tyranny.
Moreover, by decentralizing most legislative responsibilities constitutional federalism addresses a fact that we must never forget: federal legislation is an exercise in central planning by temporary majorities.
Simone Veil, the French politician most responsible for the passage of the law to legalise medical termination of pregnancy in France, died recently at the age of 87 in what I would be tempted to call, if France were not so militantly secular a country, the odour of sanctity. She was incontestably a redoubtable woman, a survivor of the German camps to which she was deported at the age of 16; but the effects of the law that she so assiduously promoted soon escaped her control and went far beyond its original intentions, as so many reformist laws are inclined to do. Very few reformers, however, ever take this tendency into account, perhaps because, for many of them, reform is the whole purpose and meaning of their lives.
Oregon’s Governor has said she will sign legislation that will require insurance companies (with one exception) to provide their beneficiaries, at no cost, and for any reason, abortions and contraceptive drugs that can be abortifacients. California has a similar law. Unlike California’s law, churches and religious organizations that object to abortion and/or contraception are exempt, but there is no protection for business owners who desire to use any insurance company other than Providence Health Plans (the one faith-based insurance company that was exempted). The Oregon legislation also expands state funding to pay for abortions for citizens and non-citizens who do not have private insurance.
The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger and even Rehnquist eras.
But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act. More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.
And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.
This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.
What are the prospects for constitutionalism and the rule of law under President Donald Trump?
What to make of Donald Trump’s interview with CBS’s Lesley Stahl last week?
The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.
Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution. Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage. More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.
Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the right to assisted suicide could be found in the Constitution. The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter, because laws against the practice had long existed.
But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either. In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had itself not met the Glucksberg test. But the right of abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process.
The kind of extremism on display on the Planned Parenthood videotapes and in the reflexive closing of ranks around the group—whose own leadership has done more to disavow its grotesqueries, or at least the depictions of them, than have its political supporters—is the product of Roe v. Wade, but not for the reasons commonly supposed.